Burnett v. Fox

United States District Court, N.D. Indiana, South Bend Division

April 27, 2018

DARYL KEITH BURNETT, JR., Plaintiff,v.EDWARD FOX, et al., Defendants.

OPINION AND ORDER

JON E.
DEGUILIO JUDGE

Daryl
Keith Burnett, Jr., a prisoner without a lawyer, filed a
complaint against Edward Fox, Michael Moon, and Keith Wilson.
“A document filed pro se is to be liberally construed,
and a pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quotation marks and citations omitted).
Nevertheless, pursuant to 28 U.S.C. § 1915A, the court
must review the merits of a prisoner complaint and dismiss it
if the action is frivolous or malicious, fails to state a
claim upon which relief may be granted, or seeks monetary
relief against a defendant who is immune from such relief.

Burnett
alleges he was terminated from his job at the Indiana State
Prison recycling center on May 6, 2016. Officer Edward Fox
and Sergeant Michael Moon, who supervised the recycling
department, signed the termination paperwork, alleging that
Burnett had removed property from the recycling area.
However, after an investigation, Major Nowatski found Burnett
had been wrongfully terminated. Subsequently, Moon sent an
e-mail to Fox and Lieutenant Keith Wilson, stating he had
signed the evaluation in error. He recommended Burnett's
reinstatement as a recycling employee and the removal of the
negative evaluation from Burnett's file.

Following
Burnett's reinstatement, Burnett told Fox, Moon, and
Wilson that their conduct had been unprofessional and the
report had defamed his good name and reputation. He told them
he believed “their unprofessional conduct was
unacceptable, and should never happen again.” ECF 2 at
6. On June 16, 2016, Burnett was terminated for a second
time. Fox filled out Burnett's termination paperwork,
stating Burnett “did not show up to work” and
“has displayed this type of behavior before.”
Id. Once again, Major Nowatski investigated and
determined Burnett had been wrongfully terminated, finding
that Burnett's absences were either justified or did not
occur. However, Moon did not rehire Burnett, and Burnett
remained unemployed until August 12, 2016. As a result of his
unemployment and wrongful terminations, Burnett suffered
“emotional distress, major depression, and mental
anguish.” Id. at 8.

Burnett
claims the defendants retaliated against him for exercising
his First Amendment rights by terminating his job. To state a
claim of First Amendment retaliation, the plaintiff must
allege that: (1) he engaged in activity protected by the
First Amendment; (2) he suffered a deprivation that would
likely deter First Amendment activity in the future; and (3)
the First Amendment activity was “at least a motivating
factor” in the Defendant's decision to take
retaliatory action. Bridges v. Gilbert, 557 F.3d
541, 546 (7th Cir. 2009) (citing Woodruff v. Mason,
542 F.3d 545, 551 (7th Cir. 2008)). “To state a cause
of action for retaliatory treatment, a complaint need only
allege a chronology of events from which retaliation may be
inferred.” Black v. Lane, 22 F.3d 1395, 1399
(7th Cir. 1994) (internal quotation marks omitted)). The
complaint plausibly states a retaliation claim, and Burnett
may proceed on this claim.

Next,
Burnett asserts that the defendants denied him procedural due
process in violation of the Fourteenth Amendment when they
terminated him on June 16, 2016, without a hearing. To
establish a procedural due process violation, a prisoner must
demonstrate the state deprived him of a liberty or property
interest arising from the Due Process Clause or created by
state law. DeWalt v. Carter, 224 F.3d 607, 613 (7th
Cir. 2000) (citing Sandin v. Conner, 515 U.S. 472,
483-84 (1995)). The Seventh Circuit has established the Due
Process Clause does not afford prisoners a liberty or
property interest in their jobs. Id.; Wallace v.
Robinson, 940 F.2d 243, 247 (7th Cir. 1991) (en banc).
Additionally, the complaint does not suggest that Burnett has
a liberty or property interest in his job created by state
law. Thus, Burnett's procedural due process claim must be
dismissed.

Finally,
Burnett alleges a state law claim of defamation against the
defendants. Under the Indiana Tort Claims Act, a tort claim
against a political subdivision is barred unless notice is
filed with the governing body of the political subdivision
and its risk management commission within 180 days of the
loss. VanValkenburg v. Warner, 602 N.E.2d 1046, 1048
(Ind.Ct.App. 1992); Ind. Code § 34-13-3-8. The notice
requirement applies not only to political subdivisions but
also to employees of political subdivisions. Id.
Here, Burnett offers nothing to suggest that he complied with
the notice requirements of the Indiana Tort Claims Act.
Therefore, the state law claim of defamation is dismissed.

For
these reasons, the court:

(1)
GRANTS Daryl Keith Burnett, Jr., leave to proceed against
Edward Fox, Michael Moon, and Keith Wilson in their
individual capacities for compensatory and punitive damages
for retaliating against him by terminating him from his
recycling center job on June 16, 2016, in violation of the
First Amendment;

(2)
DISMISSES all other claims;

(3)
DIRECTS the clerk and the United States Marshals Service to
issue and serve process on Edward Fox, Michael Moon, and
Keith Wilson at the Indiana Department of Correction with a
copy of this order and the complaint (ECF 2) as required by
28 U.S.C. § 1915(d); and

(4)
ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Edward
Fox, Michael Moon, and Keith Wilson respond, as provided for
in the Federal Rules of Civil Procedure and N.D. Ind. L.R.
10-1(b), only to the claim for which the ...

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